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Texas Officials Ask Supreme Court to Allow Six-Week Abortion Ban

Aug. 31, 2021, 8:54 PM

Texas officials urged the U.S. Supreme Court to allow a new law that would bar abortion after the sixth week of pregnancy, as the justices weighed calls by clinics and doctors to block the measure before it takes effect Wednesday.

In a court filing Tuesday, Texas Attorney General Ken Paxton said the providers haven’t shown they will be harmed by the law, which would be enforced by private lawsuits, rather than government lawyers. “They have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone,” Paxton argued.

The showdown could be a pivotal moment on one of the country’s most divisive issues. A decision allowing the Texas law to take effect could signal that the high court is poised to topple precedents that now protect abortion rights until much later in pregnancy. In the coming months, the conservative-controlled court will hear a Mississippi appeal that seeks to overturn the core constitutional abortion right.

The Texas law would be the strictest in the nation, barring abortion after a fetal heartbeat can be detected -- and before many women know they are pregnant. The challengers say the law would ban abortion for at least 85% of patients in the state and force many clinics to close.

The law “would immediately and catastrophically reduce abortion access in Texas,” the providers, led by Whole Woman’s Health, argued in court papers filed Monday.

The clinics and doctors are seeking to block the law from taking effect while the litigation goes forward. A New Orleans-based federal appeals court effectively barred any pre-enforcement challenge.

The law’s unusual enforcement mechanism is at the center of the clash. The measure lets private parties sue anyone who helps a woman get an abortion -- and collect a minimum of $10,000 in damages per procedure -- but doesn’t authorize government officials to sue.

That provision left unclear who challengers could sue before the law takes effect. The defendants in the lawsuit include a state judge and clerk who the providers say will be responsible for handling cases filed in their courts. The complaint also names Mark Lee Dickson, an anti-abortion pastor who the clinics say has threatened to file suits against those who violate the act.

The defendants say the providers lack legal “standing” to sue at this stage because they can’t show an imminent injury stemming from the law. The government defendants also say they are protected from suit by sovereign immunity.

A federal trial judge had been set to consider stopping the law from taking effect, but a three-judge panel of the conservative 5th U.S. Circuit Court of Appeals blocked the lower court proceedings from going forward.

The case is Whole Woman’s Health v. Jackson 21A24.

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Laurel Brubaker Calkins in New York at lcalkins@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Justin Blum

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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